Separation under one roof

If you and your spouse separate but continue to live in the same home this is known as separation under one roof. This may occur for a few days, weeks, months or years following your separation.

If you and your spouse were separated under one roof for any part of the 12 months immediately before the divorce application was filed, you must provide extra information to the Court to prove that you were separated during any such period. If you do not provide enough information the Court may adjourn the divorce application until sufficient information is provided.

Providing extra information

The extra information must be provided in affidavits. An affidavit is a written statement signed by a party or a witness which is sworn or affirmed before an authorised witness.

An applicant for a divorce (this means both parties in the case of a joint application) must file an affidavit, and another affidavit must be filed by an independent third party (often this other person is a family member, friend or neighbour) which supports or corroborates the claim of separation under one roof in some way.

The affidavit evidence of each applicant should address, at least, the following matters:-

The facts relied upon to establish that you separated on the specific date claimed in the divorce application

The reasons why you continued to share a home with your spouse even though the marriage had ended, and what intention, if any, you have of changing the situation

How the relationship with your spouse changed after the claimed date of separation, for example, whether you continued to share a room or have sexual relations, and how other domestic arrangements changed after the claimed date of separation, for example, the extent to which household duties such as cooking, cleaning and laundry were shared compared to before the separation

Living arrangements you made for any of your children under 18 during the time you were living under one roof

How financial arrangements changed after the claimed date of separation, for example, bank accounts, credit cards and payment of household and other expenses

How previously shared social and family activities outside the home changed after the claimed date of separation, particularly on ‘family’ occasions such as on birthdays and at Christmas

Who each party informed about their separation, for example, other family members, friends or work colleagues, and when they were told

Details of advice about the separation to government departments, for example, Centrelink, the Child Support Agency, and service providers such as health funds and utility providers. Copies of any relevant correspondence should be attached to the affidavit if available.

Whether either party has commenced and/or maintained a relationship with another person since the claimed date of separation.

What should be included in the additional affidavit

The claim of separation under one roof must be supported or corroborated by the affidavit from the third party supporting the parties’ evidence in some material respect. The person who swears this affidavit must state the relationship of the person to each party, and their evidence must be more than what they were told by either of the parties, and should include facts based on direct observation and the circumstances in which the third party was able to make those observations.

Is additional evidence needed if by the time of the hearing the parties have not lived together for 12 months?

The fact that at the time of the divorce hearing 12 months has passed since the parties ceased to live together is not enough, as the period of separation with which the Court is concerned is the period of 12 months immediately before the date the divorce application was filed.